The Supreme Court on Thursday said it will consider what would be a fundamental change in the way federal elections are conducted, giving state legislatures sole authority to set the rules for contests even if their actions violated state constitutions and resulted in extreme partisan gerrymandering for congressional seats.
Both cases were brought by Republicans challenging adverse decisions in lower courts. In North Carolina, Republicans want to restore a redistricting map that was drawn by the GOP-led legislature but rejected as a violation of the state constitution by the state’s supreme court.
“This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections,” liberal election law expert Richard Hasen wrote on his Election Law blog. “It also could provide the path for election subversion.”
The Supreme Court in March let the North Carolina high court ruling stand for the fall elections. But three of the court’s conservative justices at the time said they were skeptical that state courts had a role in refereeing the rules for federal elections, and a fourth said the issue was ripe for consideration.
State courts have played an influential role in the congressional redistricting battles following the 2020 Census. Judges have reined in Republican gerrymanders in North Carolina and Pennsylvania, for instance, and rejected maps drawn by Democratic-led legislatures in New York and Maryland.
But the effort to have the Supreme Court examine what is called the independent state legislature doctrine has been a Republican-led effort. The GOP controls both houses of the legislature in 30 states.
The doctrine comes from the U.S. Constitution’s election clause, which says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” While most often invoked in the redistricting process, the independent state legislature doctrine would also give lawmakers control over issues such as voter qualification, voting by mail and other election procedures.
In the past, that has been widely interpreted as giving states that power, but in a shared manner between residents and the executive, legislative and judicial branches.
In the election disputes leading up to the 2020 presidential election, Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh expressed support for the view that state courts could not usurp the role of the legislature in prescribing rules for federal elections.
In March, Alito said that he would block the North Carolina court’s adoption of the new congressional map and that he thought the legislature had the better argument.
“If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” wrote Alito, joined by Thomas and Gorsuch. “I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”
Kavanaugh did not agree to block the state court’s action, saying it was too close to the election. But he said the issue should be considered next term.
In a 2019 decision, all members of the court — including Thomas, Alito, Gorsuch and Kavanaugh — seemed to envision some role for state courts. In rejecting a role for federal courts in settling partisan gerrymandering lawsuits, Chief Justice John G. Roberts Jr. specified that challenges could go through state courts.
“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing partisan gerrymandering, Roberts wrote for the majority in Rucho v. Common Cause.
In 2015, the court ruled that the constitution’s election clause did not bar Arizona’s voters from giving an independent commission, rather than the legislature, the power to draw congressional districts.
“Nothing in that clause instructs, nor has this court ever held, that a state legislature may prescribe regulations on the time, place and manner of holding federal elections in defiance of provisions of the state’s constitution,” Justice Ruth Bader Ginsburg wrote for the five-member majority in Arizona State Legislature v. Arizona Independent Redistricting Commission.
The liberal Ginsburg died in 2020, and was replaced by conservative Justice Amy Coney Barrett, who likely will be pivotal in the outcome of the new challenge.
North Carolina is a purple state, with a legislature controlled by Republicans, a Democratic governor and an elected state Supreme Court with four Democrats and three Republicans. Donald Trump won the state in 2020 with 50 percent of the vote compared to 49 percent for Joe Biden.
Analysts said the map created by Republican legislators after the 2020 Census would have given the GOP an edge in 10 of 14 congressional districts. Democratic justices on the elected state Supreme Court said the redistricting maps had a partisan tilt “not explained by the political geography of North Carolina.”
The court concluded the maps “are unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution.”
The state’s Republican legislative leaders told the Supreme Court in their petition that state courts have no power to second-guess the legislature.
“By its plain text, the Elections Clause creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the Legislature” of each State,’ ” they wrote. “It does not leave the States free to limit the legislature’s constitutionally vested power, or place it elsewhere in the State’s governmental machinery, as a matter of state law.”
But the state’s department of justice said North Carolina presents a poor example for the Supreme Court to examine the issue. That is because the legislature itself granted state courts a role in redistricting, they say.
“Two decades ago, the North Carolina General Assembly passed a law expressly codifying the state courts’ authority to review legislative redistricting efforts,” the state’s brief says. “At the same time, the legislature specifically authorized the state courts to ‘impose an interim districting plan’ in situations like the one giving rise to this appeal. The North Carolina state courts thus have not ‘taken it upon themselves to set’ federal elections rules — the state legislature itself designed a statutory redistricting regime that expressly contemplates the courts’ involvement.”
The case is Moore v. Harper.
Ann E. Marimow contributed to this report.